Daniel J. Nielsen, Examiner: On October 11, 1999, the United Brotherhood of
Carpenters
and Joiners of America, AFL-CIO, Milwaukee and Southern District Council (hereinafter
referred
to as either the Carpenters or the Complainant) filed a complaint of unfair labor practices
with the
Wisconsin Employment Relations Commission, alleging that the Building and Construction
Trades
Council of South Central Wisconsin (hereinafter referred to as either the Trades Council or
the
Respondent) had violated the Wisconsin Employment Peace Act (WEPA) by refusing to
allow the
Carpenters to represent employes in the carpentry craft

No. 29809-A

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No. 29809-A

who were included in the Trades Council's public sector bargaining units in the
Madison area. The
Respondent filed a Motion to Dismiss and/or For a More Definite Statement, in response to
which
the Complainant submitted a clarification and amended the complaint to allege a violation of
the
Municipal Employment Relations Act (MERA). The Examiner subsequently wrote to the
Complainant, seeking to clarify the basis for the complaint, and the Complainant confirmed
the
accuracy of the Examiner's summary. The Respondent subsequently submitted a Motion to
Dismiss
for Failure to State a Claim. The Examiner directed the parties to submit any arguments or
citations
of legal authority relevant to the Motion no later than January 7, 2000. That deadline passed
without
the submission of any further material.

Now having considered the evidence, the arguments of the parties, the statutes and
the
record
as a whole, the Examiner makes and issues the following Findings of Fact, Conclusion of
Law and
Order.

FINDINGS OF FACT

1. That United Brotherhood of Carpenters and Joiners of America, AFL-CIO,
Milwaukee and
Southern District Council, hereinafter referred to as either the Carpenters or the
Complainant, is a
labor organization representing persons employed in the carpentry trade. The Carpenters
maintain
an office at N25 W23055 Paul Road, Suite 1, Pewaukee, Wisconsin. The mailing address is
Post
Office Box 790, Pewaukee, Wisconsin 53072-0790.

2. That the Building Construction Trades Council of South Central Wisconsin
(hereinafter
referred to as either the Trades Council or the Respondent) is a labor organization
maintaining its
offices at 1602 South Park Street, Room 204, Madison, Wisconsin 53715.

3. That the Trades Council is the exclusive bargaining representative for several
public sector
bargaining units in the Madison area, including bargaining units at the City of Madison,
Dane County
and the Madison Metropolitan School District.

4. That among the employes represented by the Trades Council in its capacity as
exclusive
bargaining representative for the aforementioned bargaining units are persons who are also
members
of the Carpenters.

5. That, on October 11, 1999, the Carpenters filed the instant complaint alleging that
the
Trades Council had violated Sec. 111.06, Stats. The Carpenters alleged that the facts giving
rise to
the complaint were:

Complainant has members in Madison, Wisconsin, who are
employed by the City of Madison,
Madison Metropolitan Public School District, and Dane County, respectively.

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No. 29809-A

Currently, the carpenters in these locals are being denied their
choice of representative. A
majority of Complainant's members have expressed a desire to be represented by
Complainant.

Respondent has prevented Complainant
from representing is (sic) members, despit (sic)
Complainant's requests that it be recognized as a joint (?) bargaining representative.

6. On October 19, 1999, the Respondent's counsel submitted a "Motion to Dismiss
and/or For
a More Definite Statement" to the Commission's General Counsel:

Respondent, Building and Construction Trades Council of
South
Central Wisconsin
("Council"), by and through counsel, hereby moves that the above case be dismissed for
failure to
state a claim and/or that Complainant be ordered to provide a more definite statement,
pursuant to
Wis. Admin. Code, Sec. ERC 12.03(3), based upon the following:

1. The Complaint avers that Complainant
United Brotherhood of Carpenters and Joiner (sic)
of America, Milwaukee and Southern District Council ("Carpenters") has members in
Madison who
are employed by the Madison Metropolitan School District, Dane County and the City of
Madison.
It then alleges that, "the carpenters in these locals are being denied their choice of
representative,"
and have expressed a desire to be represented by the Carpenters. It concludes by asserting
that the
Council has prevented it from representing its members and seeks recognition as a "joint(?)
bargaining
representative."

2. The Carpenters allege generally that
this
conduct violates Section 111.06, Stats. But as
provided in Section 111.02(6) Stats., Section 111.06 only applies to private sector
employees. The
Carpenters do not allege any violation of Section 111.70, the statute that governs the
municipal
employees at issue here. Accordingly, the complaint must be dismissed for failure to state
any
cognizable claim under the statute that applies to the employees in question.

3. Alternatively, the ambiguous allegations
fail to comply with the requirement set forth in
ERC 12.02(2) that a complaint contain a set forth the "time and place of occurrence of
particular acts
and the sections of the statute violated thereby." The Complaint is bereft of any description
of any
specific acts and any dates which the acts are alleged to have occurred involving the
purported denial
of any employees' choice of representative, or the Council's

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No. 29809-A

alleged prevention of the Carpenters from representing their
members. This sloppy draftsmanship
makes it impossible to provide any meaningful response to the complaint.

4. Indeed, the Carpenters appear to be
confused about what they were even asking the
Council to do. Its use of the term "joint (?) bargaining representative" evidences a complete
lack of
investigation by its counsel of the underlying facts and a failure to conduct even minimal
legal
research regarding the propriety of its apparent desire to become a "joint bargaining
representative.
These derelictions, together with the Carpenter's failure to even cite the proper statute,
compel a
conclusion that the complaint is frivolous and "demonstrates extraordinary bad faith."
Hayward
Community School District, Dec. No. 24259-B (WERC, 3/88), at p. 5.

WHEREFORE,
for the foregoing reasons, the Complaint should be dismissed and the
Complainant be directed to reimburse the Council for its attorneys fees and costs on the
grounds that
the complaint is frivolous and filed in bad faith. Alternatively, the Carpenters should be
directed to
provide a more definite statement of the facts.

7. On October 21, 1999, counsel for the Complainant submitted a response to the
Respondent's Motion, stating that the "(?)" in the phrase "joint (?) bargaining representative"
was a
typographical error, and that the Complainant wished to be the sole bargaining representative
for its
members. The Complainant also amended its complaint to cite Sec. 111.70, MERA,
rather than
WEPA, and provided details of the specific incidents alleged to have given rise to the
complaint, to
wit, (1) an incident in the summer of 1999 when a representative of the Carpenters
was told to leave
a contract information meeting run by a representative of the Trades Council for its Madison
Schools
bargaining unit; and (2) "numerous" occasions on which the Carpenters asked to
represent their
members in the Trades Council's city, county and school district units in disputes with those
employers, and were denied. The Complainant also alleged that there were two instances in
which
the Trades Council gave it permission to represent carpenters-members in grievance
arbitration.

8. On October 25, 1999, counsel for the Respondent wrote to the General Counsel,
asserting
that the Complainant should not be allowed to amend its complaint to cure any deficiencies
noted in
the Motion to Dismiss and/or Make More Definite and Certain, and thus his October 21st
submission
should not be considered. Counsel for Respondent further submitted that the clarification
raised more
questions than it answered, because the Complainant now sought to be an exclusive
bargaining
representative of employes who were already represented, a result not permitted under the
law.
Further he asserted that the claim

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No. 29809-A

that the Respondent had violated Sec. 111.70 was too broad a claim to permit a
defense. He asserted
that the dispute was an internal disagreement among unions and outside of the Commission's
jurisdiction.

9. On November 4, 1999, the Examiner wrote to the parties, advising them that he
had been
appointed Examiner in the case, and had received the Respondent's Motions. The Examiner
went on
to request confirmation of his understanding of the Complainant's allegations:

As I read the complaint and the subsequent letter of clarification,
the allegation is that there are
various Madison area public sector bargaining units for which the Trades Council is either
certified
or recognized as the bargaining representative. The Carpenters assert that they have the right
to
represent members of the Carpenters' Union who are included in these bargaining units,
either as a
joint representative or as the exclusive representative, and that the Trades Council has
generally
refused to allow them to act as the representative for Carpenter-members of the Trades
Council's
bargaining unit. In support of this representational claim, the Carpenters assert that there
have been
two issues involving School District employees that the Carpenters' Union, rather than the
Trades
Council, has taken to arbitration. This was done with the consent of the Trades Council. As
evidence
of a denial of their right to represent members of the Carpenters Union, the Carpenters assert
that a
representative of the Carpenters was denied the opportunity to participate in a contract
information
meeting conducted by the Trades Council for employees in the Trades Council's bargaining
unit at
the Madison Metropolitan School District, including some employees who hold memberships
in the
Carpenters' Union.

I would appreciate it if Mr. Erickson would
let me know whether this is an accurate statement
of the Complainant's case.

On November 12th, the Complainant's attorney sent a facsimile to the Examiner
confirming the
accuracy of the November 4th summary of the case.

10. On November 16th, the Examiner wrote to the parties, and advised them that the
factual
allegations were sufficiently clear to allow the Respondent to organize a defense, but
directing the
Complainant to clarify its theory of the case:

Mr. Erickson has confirmed the accuracy of the summary
statement of the Complainant's case
contained in my letter of November 4th. Treating the October 21st letter to General Counsel
Davis
as an amendment to the complaint,

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No. 29809-A

I do not believe the complaint is so vague as to warrant summary
dismissal, and I am denying the
Respondent's Motion. I do believe, however, that the Respondent and the Examiner are
entitled to
clarification of the complaint as to what specific provisions of Section 111.70, MERA have
been
violated and how the Complainant believes the Respondent has violated them.

The Complainant should provide this
clarification no later than the close of business on
November 24th, and should at the same time provide a copy to Mr. Kobelt.

11. On November 18th, the Complainant's counsel responded, specifying that the
Respondent
had violated Sec. 111.70(2) by refusing to allow the carpenter-members of the Respondent's
bargaining units to be represented by the Carpenters, even though they had expressed a
desire for
such representation.

12. On December 6th, counsel for the Respondent filed a motion styled as a
"Renewed"
Motion to Dismiss for Failure to State a Claim:

1. On October 19, 1999, the Council filed
a Motion to Dismiss for Failure to state a claim
and/or for a more definite statement. The introduction to the Motion states that the motion
seeks
dismissal for failure to state a claim.

2. By letter dated October 21, counsel for
the Carpenters submitted a response purporting to
provide a more definite statement.

3. On October 25, the Council responded
that the Carpenters (sic) effort to clarify their
complaint was still too vague to permit a meaningful response and renewed its motion to
dismiss the
complaint.

4. On November 4, the Examiner
provided
his understanding of the facts being alleged and
asked counsel for the Carpenters if this understanding was correct. On November 12,
counsel replied
that the Examiner's summary was correct. The revised facts acknowledge the Council is the
only
certified or recognized representative for the employees in question and that the claim is
representational in nature.

5. On November 16, the Examiner
requested that the Carpenters specify which statutory
provisions are violated based upon the version of the facts to which the Carpenters had
agreed.

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No. 29809-A

6. On November 24, the Carpenters responded with an
allegation that Respondent has
violated Section 111.70(2), Stats., (sic) Consistent with the facts alleged, the Carpenters
assert that,
"a majority of Complainants (sic) members have expressed a desire to be represented by
Complainant,
and not respondent."

7. To date, the Examiner has refrained
from ruling on the motion to dismiss for failure to state
a claim pending the Carpenters (sic) repeated efforts to clarify their Complaint. Respondent
submits
that this Complaint, even as amended with the assistance of the Examiner, still fails to state a
claim
on which relief can be granted.

8. The Carpenter's cite language from
Section 111.70(2) providing that employees have the
right to "bargain collectively through representatives of their own choosing." The Complaint,
now
for the third time, fails to cite the appropriate section of the law. Section
111.70(2) is a general
statement of the rights of employees to organize. There is no statutory basis to allege a
violation of
Section 111.70(2), standing alone. Rather such allegations of a violation of Section
111.70(2) must
be tied in to either an employer or a union prohibited practice. It is inexcusable negligence
for the
Carpenters to fail to cite the appropriate section involving union prohibited practices--Section
111.70(3)(b)(1), which makes it unlawful for a union to coerce an employee in the exercise
of rights
protected by Section 111.70(2).

9. Even if the Carpenters are again
for the third time allowed to amend their Complaint to
allege a violation of Section 111.70(3)(b)(1), they are still way off base. There is little
question that
the Carpenter's claim that "a majority of [its] members have expressed a desire to be
represented by
Complainant indicates that this dispute is representational in nature. The Complainant seeks
to
represent the employees in question in some fashion that they remain unable to explain.
Nevertheless,
it is clear that representational disputes are resolved through separate procedures set forth in
Section
111.70(4)(d).

10. The Examiner lacks jurisdiction to
resolve such a representational dispute. Therefore, the
Complaint must be dismissed on this basis.

11. Respondent is fully aware that the
Commission is inclined to grant Complainants the right
to a hearing even if their Complaint is inartfully drafted. But the Carpenters, who are
represented by
counsel, have been given three opportunities to state a cognizable claim. They have failed
each time,
despite the Examiner's generous but futile efforts to permit the Carpenters to amend their
Complaint.

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No. 29809-A

12. Enough is enough. It would serve no purpose whatsoever
to
require Respondent to incur
the expenses of preparing for a hearing that cannot result in the relief the Carpenters seek.

13. Moreover, this is a case calling for the
imposition of sanctions. The Examiner should
award Respondents their legal fees for having to defend this patently frivolous action filed by
an
attorney who has failed to do his homework.

13. That there is no evidence nor any allegation that a demand for representation of
the
carpenter-members of the Respondent's bargaining units has ever been made by the
Complainant to
the City of Madison, Dane County or the Madison Metropolitan School District.

14. That there is no evidence nor any allegation that a representation petition of any
kind has
ever been filed by the Complainant, seeking to supplant the Respondent in its Madison-area
public
sector bargaining units, or to sever the carpenter crafts from those units.

15. That there is no evidence nor any allegation that any of the Respondent's
Madison-area
public sector bargaining units are not appropriate units within the meaning of MERA.

16. That there is no evidence nor any allegation that the Respondent has abandoned
its
representational responsibilities with respect to any of its Madison-area public sector
bargaining units.

17. That there is no allegation nor any evidence that the Complainant is the majority
representative for any of the certified or recognized Madison-area public sector bargaining
units
represented by the Respondent.

18. That the Complainant is not the majority representative for any of the certified or
recognized Madison-area public sector bargaining units represented by the Respondent.

On the basis of the above and foregoing findings of fact, the Examiner makes and
issues the
following

CONCLUSION OF LAW

The complaint fails to state a claim upon which relief can be granted.

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No. 29809-A

On the basis of the above and foregoing Findings of Fact and Conclusion of Law, the
Examiner makes and issues the following

ORDER

IT IS HEREBY ORDERED that the instant complaint of prohibited practices be, and
the
same hereby is, dismissed in its entirety.

Dated at Racine, Wisconsin, this 25th day of January, 2000.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Daniel Nielsen, Examiner

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No. 29809-A

SOUTH CENTRAL WISCONSIN BUILDING AND CONSTRUCTION
TRADES COUNCIL

MEMORANDUM
ACCOMPANYING

FINDINGS OF FACT, CONCLUSION OF LAW
AND ORDER

DISMISSING COMPLAINT FOR FAILURE TO
STATE A

CLAIM UPON WHICH RELIEF CAN BE
GRANTED

The Complainant stipulated to the accuracy of the Examiner's November 4, 1999
summary
of its case:

. . . the allegation is that there are various Madison area public
sector bargaining units for which
the Trades Council is either certified or recognized as the bargaining representative. The
Carpenters
assert that they have the right to represent members of the Carpenters' Union who are
included in
these bargaining units, either as a joint representative or as the exclusive representative, and
that the
Trades Council has generally refused to allow them to act as the representative for
Carpenter-members of the Trades Council's bargaining unit. In support of this
representational claim, the
Carpenters assert that there have been two issues involving School District employees that
the
Carpenters' Union, rather than the Trades Council, has taken to arbitration. This was done
with the
consent of the Trades Council. As evidence of a denial of their right to represent members
of the
Carpenters Union, the Carpenters assert that a representative of the Carpenters was denied
the
opportunity to participate in a contract information meeting conducted by the Trades Council
for
employees in the Trades Council's bargaining unit at the Madison Metropolitan School
District,
including some employees who hold memberships in the Carpenters' Union.

The complaint, in its ultimate form, asserts that the Respondent labor organization
has
violated Sec. 111.70(3)(b)1 by refusing to cede representation rights over carpenter members
of its
Madison area bargaining units to the Complainant. That provision makes it a prohibited
practice for
a municipal employe or a labor organization to "coerce or intimidate a municipal employe in
the
enjoyment of the employe's legal rights, including those guaranteed in sub. (2)."
Subsection 2 of
MERA defines the rights of municipal employes, including ". . . the right
of self-organization, and the
right to form, join or assist labor organizations, to bargain collectively through
representatives of their
own choosing, and to engage in lawful, concerted activities for the purpose of collective
bargaining
or other mutual aid or protection, and . . . the right to refrain from any and all such
activities. . ."

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No. 29809-A

The complaint attempts to raise an issue of whether the carpenter-members of the
Respondent's bargaining units are being denied the right to bargain "through representatives
of their
own choosing" because the Trades Council insists on representing them rather than allowing
the
Complainant to represent them. It appears that the Trades Council insists on representing the
carpenter-members of the bargaining units because it is their exclusive bargaining
representative and
is legally obligated to represent them. The Complainant does not assert that the existing
units are
inappropriate, does not question the majority status of the Respondent in the existing
bargaining units,
does not claim majority status in the existing units, and does not claim to have ever made
any demand
for recognition to any of the municipal employers involved. The Complainant does claim
majority
status among the carpenters who are included in the larger Trades Council bargaining units,
but has
not attempted to test its claim through the filing of any petition to sever the carpenter
craftsmen from
the overall units.

In effect, the Complainant is asking the Examiner to order the creation of new
bargaining
units, carving out the carpenter-members of the existing bargaining units and conferring upon
the
Complainant the status of exclusive bargaining representative. It seeks this extraordinary
remedy as
relief for conduct by the Trades Council -- representation of employes in its bargaining units
-- that
is not only legally permissible, but legally required. There is nothing in the complaint that
even
suggests the commission of prohibited practices by the Respondent. Inasmuch as the
Complainant
would not be entitled to any relief if it proved every factual allegation of the complaints,
there is no
requirement that a hearing be held and dismissal of the complaint on the pleadings is the
appropriate
course of action.

As to the Respondent's request for attorney's fees, that remedy is not available to
respondents
in complaint proceedings. See, Milwaukee Public Schools, Dec. No. 29502-A (Burns,
7/9/99);
City of LaCrosse, Dec. No. 29613-A (Crowley, 5/27/99); Wisconsin State Employees
Union,
Dec. No. 29177-C (WERC, 5/25/99).